Although Mr Keefe (State Secrets, New Yorker, April 28, 2008: 28 - 34) carefully explains the flawed origins of the state-secret doctrine, he does not tell us that after the information relevant to the 1953 Reynolds case became public, the Third Circuit Court of Appeal refused to reconsider the original state secret case. It is important that this case be carefully re-examined to ensure that the privilege rests on sound grounds.
Also he does not tell your readers of the appalling uses to which the doctrine has been put by the current administration. In addition to the el-Masri case* which he cites, the state secret defense was invoked in the case of Mr. Arar, a Canadian, who was also the victim of mistaken identity. He was arrested in New York while in transit between Egypt and Toronto, and suffered rendition to Syria where he was tortured. In Canada the case was subject to a full scale judicial inquiry which reported in September 2006 that Mr Arar had no connection to al-Qaeda and that Canadian and American officials were negligent in their duties. The American Government refused to cooperate in the inquiry -- what good neighbors we are.
The Congress must refine the legislation. Legislation that sets up a court where claimants could test the validity of the state secret defense would be useful -- as it is, judges just have to accept the Government's word. And we know what that is worth these days -- as perhaps it was in 1953 when the doctrine was first promulgated.
* He was seized by the CIA in Macedonia, held by the CIA for five months in a prison cell in Afghanistan to which he had been rendered, and when it was discovered that the CIA had the wrong man he was returned to Macedonia and dumped on the side of an abandoned road. Note that: dumped on the side of a road, not taken to a decent hotel, not fed and given clothes, and not given help in re-establishing his life. Who decided on this treatment. Was it just some insensitive lower level bureaucrat or did the decision emanate from the highest levels of the CIA?
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